Australia, July 22 -- New South Wales Land and Environment Court issued text of the following judgement on June 20:

1. ADAMSON JA: I have had the benefit of reading the reasons of Hamill J in draft and agree with the orders proposed by his Honour and, substantially, with his reasons, save for the following matter. I do not agree that the sentence imposed was "very heavy", having regard to the sentencing considerations, including, most significantly, the objective seriousness of the conduct and the "guideposts" (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]) of the maximum penalty and standard non-parole period.

2. As Hamill J has acknowledged and the High Court has said on many occasions, statistics may indicate a "range" of sentences that has been imposed. Where a ground of manifest excess is raised, it is usual for a range of past sentences in arguably comparable cases to be relied upon. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa) at [303]-[304], Simpson J said the following about this "range":

A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.

But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases ... the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned: Wong v The Queen (at [59]).

3. In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54], the High Court observed that this extract from De La Rosa "accurately identified the proper use of information about sentences that have been passed in other cases." In Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41], French CJ, Hayne, Kiefel and Bell JJ said (footnotes omitted):

The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19776f733a5636e2ca7235af)

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